In re Application of Erickson

• Decision Date: 22 September 1927
• Docket Number: 5118
• Citation: 260 P. 160,44 Idaho 713
• Parties: In the Matter of the Application of KARL ERICKSON for a Writ of Habeas Corpus
• Court: Idaho Supreme Court

260 P. 160

44 Idaho 713

In the Matter of the Application of KARL ERICKSON for a Writ of Habeas Corpus

No. 5118

Supreme Court of Idaho

September 22, 1927

CRIMINAL LAW-INDETERMINATE SENTENCE LAW-MAXIMUM TERM OF IMPRISONMENT GOVERNED BY STATUTE.

As to an offense committed after enactment of the indeterminate sentence law, C. S., sec. 9035, and falling within its terms sections 8079, 8080, as to sentencing, so far as inconsistent with it, are impliedly repealed, and portion of sentence fixing maximum term of imprisonment at less than maximum provided for the offense by statute is surplusage.

PETITION for a Writ of Habeas Corpus. Writ quashed.

Demurrer sustained and writ quashed.

J. R Smead and Martin & Martin, for Petitioner.

In Idaho, every felony must be the subject of an indeterminate sentence. (C. S., sec. 9035.) Under the indeterminate statute the punishment for every felony is "left undetermined between certain limits"; that is the express purpose of the indeterminate sentence statute.

By the terms of another statute, in such case the trial court must determine the sentence, within such limits as the law may otherwise prescribe, that is, within the limits prescribed by the statute which defines the offense. (C. S., sec. 8080.)

C. S., secs. 8079 and 8080, have not heretofore been called to the court's attention when the indeterminate sentence statute was under consideration. (Matter of Setters, 23 Idaho 270, 128 P. 1111; State v. Lottridge, 29 Idaho 822, 162 P. 672; State v. Grant, 26 Idaho 189, 140 P. 959.)

Statutes which relate to the same subject matter should be construed together and effect given to each. (36 Cyc. 1146, 1147.)

It will not be presumed that the legislature intended to leave on the statutes two contradictory enactments. (State v. Givens, 48 Fla. 165, 37 So. 308.)

C. S., sec. 8080, not only grants the power, but makes it the duty of the trial judge, to determine the punishment to be imposed under a statute, such as section 5316, which leaves that punishment undetermined between certain limits.

"All parts of the code adopted as a whole must be construed together with a view to harmonizing each. This is particularly true where we have different statutes relating to the same subject. And such statutes should be regarded, not as prior or subsequent acts, but as simultaneous expressions of the legislative will." (36 Cyc. 1167, and authorities there cited.)

"Statutes relating to the same subject matter are to be construed together in ascertaining the meaning of any particular statute of such group." (Brill's Ency. Crim. Law, sec. 72 and authorities cited.)

Where two clauses or phrases of a statute are seemingly in conflict, the later clause is held to prevail over the earlier clause. (Ex parte Thomas, 113 Ala. 1, 21 So. 369; In re Roberts, 157 Cal. 472, 108 P. 315.)

Frank L. Stephan, Attorney General, and Leon M. Fisk, Assistant Attorney General, for Respondent.

In so far as C. S., secs. 8079 and 8080, are inconsistent with sec. 9035, they are repealed by implication. (8 Cal. Jur., Crim. Law, sec. 483; Ex parte Lee, 177 Cal. 690, 171 P. 958; Kerr's Penal Code, secs. 12, 13 and 1168.)

Where two inconsistent statutes are carried forward in a code, the one last passed prevails. (25 R. C. L. 926.)

Sections 8079 and 8080 are continued in the code only for the purpose of covering those instances where the facts occurred prior to the passage of the indeterminate sentence act. (Ex parte Lee, supra.)

The maximum sentence as fixed by law, except where it is for life on a term of years, cannot be lessened by the court. (C. S., sec. 9035; State v. Lottridge, 29 Idaho 822, 162 P. 672; In re Setters, 23 Idaho 270; State v. Miller, 95 Kan. 310, 147 P. 844; State v. Perkins, 143 Iowa 55, 20 Ann. Cas. 1217, 120 N.W. 62; People v. Mendosa, 178 Cal. 509, 173 P. 998; People v. Purio, 49 Cal.App. 685, 194 P. 74; In re Campbell, 138 Mich. 597, 101 N.W. 826; In re Duff, 141 Mich. 623, 105 N.W. 138.)

A sentence under the indeterminate sentence law is in effect a sentence for the maximum term prescribed by law. (In re Lee, supra; State v. Empey, 65 Utah 609, 44 A. L. R. 558, 239 P. 25.)

BUDGE J. Wm. E. Lee, C. J., T. Bailey Lee, J., and Givens, J., concurring, TAYLOR, J., Concurring Specially.

OPINION

BUDGE, J.

Petitioner filed in this court an original petition for a writ of habeas corpus in which, among other things, he alleges that he is unlawfully imprisoned, detained, confined and restrained of his liberty by the warden of the state penitentiary; that said imprisonment, detention and restraint are illegal in this, that he, the petitioner, was heretofore charged by information of the prosecuting attorney of Shoshone county with a violation of the provisions of C. S., sec. 5316, to which charge in said information contained he entered a plea of guilty, and that thereupon and pursuant to said plea of guilty the court pronounced judgment and sentence upon him that he be confined in the state penitentiary for a period of not less than one year nor more than fourteen months and that he pay a fine of $ 200, and that if said fine should not be paid he be further imprisoned in said state penitentiary until said fine should be discharged at the rate of $ 2 per day. It further appears from the allegations of the petition that petitioner has served the maximum term of imprisonment imposed, less time earned for good behavior, and paid the fine imposed by serving the required length of time at the rate of $ 2 per day.

To the petition a demurrer was filed on behalf of the warden of the penitentiary, in which it is alleged that the petition does not state facts sufficient to entitle petitioner to the relief sought or to any relief whatever and does not set forth facts sufficient to show that petitioner is entitled to the granting of the writ of habeas corpus prayed for, or to entitle him to be discharged from said state institution.

The question raised is whether or not the trial court had authority to fix a maximum sentence different from that fixed by C. S., sec. 5316; said section providing that any person committing an offense therein named shall be deemed guilty of a felony, and upon conviction thereof "shall be fined not less than $ 200 nor more than $ 10,000, and shall be imprisoned for not less than one year nor more than 10 years in the state penitentiary." Upon petitioner's plea of guilty to the commission of an offense within this section, the district court, in passing sentence, fixed the minimum imprisonment at one year but reduced the maximum imprisonment from ten years to fourteen months, and imposed a definite fine of $ 200.

Petitioner contends that C. S., secs. 8079, 8080 and 9035, are all involved and are here for interpretation.

C. S., sec. 8079 provides:

"The several sections of this code which declare certain crimes to be punishable as therein mentioned, devolve a duty upon the court authorized to pass sentence, to determine and impose the punishment prescribed."

C. S., sec. 8080 provides:

"Whenever, in this code, the punishment for a crime is left undetermined between certain limits, the punishment to be inflicted in a particular case, must be determined by the court authorized to pass sentence within such limits as may be prescribed by this code."

The two foregoing sections, enacted by the territorial legislature in 1865, are identical with the California statutes on this subject and no doubt were taken from the California Penal Code. (Kerr's Penal Code of California, secs. 12 and 13.)

C. S., sec. 9035, known as our indeterminate sentence law, first enacted in 1909 (Sess. Laws 1909, p. 81), reads as follows:

"When any person shall be convicted of a felony, except treason or murder in the first degree, the punishment for which, as prescribed by law, may be imprisonment in the state penitentiary, the court imposing sentence shall not fix a definite term of imprisonment but shall...